General Discount Corp. v. Weiss Machinery Corp., 2-282A51
| Decision Date | 12 July 1982 |
| Docket Number | No. 2-282A51,2-282A51 |
| Parties | GENERAL DISCOUNT CORPORATION, Appellant (Plaintiff Below), v. WEISS MACHINERY CORPORATION, Weiss Sales and Leasing, Inc., and Edward Weiss, Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
L. Tyler Spies, Morgan & Pottinger, New Albany, for appellant.
Donald H. Dunnuck, Dunnuck, Rankin, Wyrick, McShurley & Schafer, Muncie, for appellees.
This cause of action began when General Discount Corporation sued for replevin and damages occurring due to the breach of certain conditional sales contracts, and notes, secured by security agreements which were assigned to General Discount by Weiss Machinery Corporation and Weiss Sales and Leasing, Inc. (hereinafter collectively referred to as Weiss). Edward Weiss guaranteed the performance of the contracts and notes. The parties entered into an agreed judgment which provided:
"AGREED JUDGMENT
By agreement of the Plaintiff, by Counsel, and the Defendants, Weiss Machinery Corporation and Weiss Sales and Leasing, Inc., and Edward Weiss, it is agreed, stipulated, ordered and adjudged as follows:
1. Plaintiff has received the sum of $21,844.83 from the Defendants, Weiss Machinery Corporation and Weiss Sales and Leasing, Inc., in full satisfaction of the debt owed to Plaintiff by said Defendants, as evidenced by Exhibits 'A' through and including 'E'. In exchange for said sums Plaintiff has delivered to said Defendants the certificates of title on the equipment described in Exhibits 'A' through 'E'.
2. It is further agreed, ordered and adjudged that the Defendants, Weiss Machinery Corporation and Edward Weiss will deliver the following described security to Plaintiff by delivering said security to S. & H. Contractors, Walton, Kentucky prior to 5:00 P.M., July 29, 1980:
One (1) 1978 CaseModel 580-C Tractor/Loader/Backhoe, Serial Number 8966113
One (1) 1978 Case 580 C Tractor/Loader/Backhoe Serial # 8972520 with extenda Hoe and 4 in 1 Bucket
Failure to deliver said security by 5:00 P.M., July 29, 1980 will constitute a default of this agreed judgment and the settlement provisions of this paragraph and of paragraph three below will be null and void, entitling Plaintiff to immediate possession of said security and requiring said Defendants to immediately deliver said equipment to said Plaintiff at S. & H. Contractors, Walton, Kentucky. In addition, Plaintiff will be entitled to collect the full amount set forth in paragraph three below including interest, attorney fees, expenses, and court costs.
3. It is further agreed, ordered and adjudged, that Plaintiff shall recover of the Defendants, Weiss Machinery Corporation and Edward Weiss, the sum of $55,589.21 plus interest at the rate of 12% per annum from July 31, 1980 until paid, plus the additional sum of $2,800, attorney fees, plus miscellaneous expenses of $3,335.00 and court costs. This paragraph will be considered paid in full upon receipt by Plaintiff's counsel at 426 Bank Street, New Albany, Indiana 47150 of the sum of $55,589.21 on or before 12:00 Noon, the day of August 11, 1980. Upon receipt of said payment, Plaintiff will deliver a termination statement terminating Plaintiff's security interest in the following described equipment:
One (1) 1978 Case 580 C Tractor/Loader/Backhoe Serial # 8974643 with Extenda-A-hoe, 4 in 1 bucket and enclosed cab
Failure to pay the sums set forth above, or to perform any part of this agreed judgment will constitute a default herein and the settlement provisions of this paragraph and paragraph two above will be null and void, entitling Plaintiff to collect the full amounts set forth above, including interest, attorney fees, expenses and court costs, and requiring said Defendants to immediately deliver possession of the equipment described above to Plaintiff at S. & H. Contractors, Walton, Kentucky.
4. It is further agreed, ordered and adjudged that the counterclaim of the Defendants against the Plaintiff is dismissed with prejudice."
General Discount alleged that Weiss breached the provisions of the agreed judgment by failing to deliver certain pieces of equipment within the time frame specified, and General Discount filed a motion requesting the court to enter the agreed judgment and enforce its default provisions. The court sustained General Discount's motion and entered the agreed judgment.
Weiss filed a motion to correct errors after the court's entry of the agreed judgment. The motion was overruled, and the court entered an order entitling General Discount to recover $55,589.21 plus interest thereon at 12% per annum from July 31, 1980 until paid, plus attorney fees, expenses, and court costs. Weiss then filed a praecipe but failed to pursue the appeal.
Subsequently Weiss filed a petition for declaratory relief for an interpretation of the agreed judgment. The trial court entered the following findings and judgment:
1. The Court finds that the above parties entered into an Agreed Judgment in the above cause said agreed judgment presented to the Court on or about the 29th day of August, 1980.
2. The Court further finds that, pursuant to said Agreed Judgment, the plaintiff has received the sum of Twenty One Thousand Eight Hundred Forty Four and Eighty Three Cents ($21,844.83) from the defendants, in full satisfaction of a debt owed to plaintiff by said defendant, as evidenced by Exhibits 'a' through and including 'e'.
3. That the Court further finds that in exchange for said sum, the plaintiff has delivered unto said defendants the certificates of title on equipment described in Exhibits 'a' through 'e'.
4. The Court further finds that on July 28, 1980, and on July 29, 1980, the defendants delivered the following described security unto plaintiff:
1. One (1) 1978 Case Model 580-C Tractor/Loader/Backhoe, Serial Number 8966113
2. One (1) 1978 General Nine (9) Dow Lowboy Trailer, Serial Number 9D7853
3. One (1) 1969 Ford Single Axle Dump Truck, Model 611C, Serial Number F61CCE02229
4. One (1) 1978 Case 580 C Tractor/Loader/Backhoe, Serial Number 8972520 with extenda Hoe and Four (4) in One (1) Bucket
5. One (1) 1978 Case 380 C General Purpose Tractor, Serial Number 11009879
6. One (1) Cast [sic] 450E Crawler/Dozer, Serial Number 3066895 with Power Angle Tilt
5. The Court further finds that the delivery of the above described equipment is in substantial compliance with the purpose of said agreed judgment, executed between the parties.
6. The Court further finds that, at the time said defendants delivered unto said plaintiff the one (1) 1978 Cast [sic] 580C Tractor/Loader Backhoe, Serial Number 8972520 with extenda hoe and four (4) in One (1) Bucket, said defendants, by a good faith mistake, tendered unto said plaintiffs [sic] two (2) additional buckets, other than the original Four (4) in One (1) Bucket.
7. The Court further finds that the defendants, by good faith mistake, had failed to deliver said Four (4) in One (1) Bucket/Loader bucket unto the Plaintiff due to the fact that said Four (4) in One (1) Bucket had been repossessed from a third party, and subsequently was put into defendants' inventory, without the knowledge of said defendant, Edward Weiss.
8. The Court further finds that, upon knowledge and notice unto said defendants of the mistaken Four (4) in One (1) Bucket, that said defendants sent and delivered the proper Four (4) in One (1) Bucket unto said plaintiff on September 8, 1980.
9. The Court further finds that said defendants replaced the proper Four (4) in One (1) Bucket without any formal judicial process brought by said plaintiff against said defendants to compel same.
10. The Court further finds that the mistake, concerning the delivery of the Four (4) in One (1) Bucket by the defendants was rectified by said defendants within forty (40) days of the initial delivery.
11. The Court further finds that said plaintiff has failed to show any immediate or substantial loss incurred by the failure of defendants to deliver the said Four (4) in One (1) Bucket prior to September 9, 1980.
12. The Court further finds, that pursuant to the Agreed Judgment between the parties, the defendants offered to tender unto the plaintiff and plaintiff's counsel, a bank draft in the amount of Fifty Five Thousand Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) prior to August 11, 1980, per the Agreed Judgment.
13. The Court further finds that on or before August 11, 1980, the plaintiff, contrary to the Agreed Judgment, wrongfully failed to accept the defendants' tender of the Fifty Thousand [sic] Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) bank draft in breach of the Agreed Judgment.
14. The Court further finds that the plaintiff, in breach of said Agreed Judgment, wrongfully failed to deliver a termination statement terminating plaintiff's security interest in a certain 1978 Case 580 C Tractor/Loader/Backhoe, Serial Number 8974643 with Extenda-A-Hoe, four (4) in one (1) bucket and enclosed cab; and a certain 1978 Case 450 Crawler...
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